National Fire Ins. Co. of Hartford, Conn. v. Kinney, 8 Div. 299.

• Decision Date: 14 April 1932
• Docket Number: 8 Div. 299.
• Citation: 224 Ala. 586,141 So. 350
• Parties: NATIONAL FIRE INS. CO. OF HARTFORD, CONN., v. KINNEY ET AL.
• Court: Alabama Supreme Court

141 So. 350

224 Ala. 586

NATIONAL FIRE INS. CO. OF HARTFORD, CONN., v. KINNEY ET AL.

8 Div. 299.

Supreme Court of Alabama

April 14, 1932

Appeal from Circuit Court, Colbert County; J. Fred Johnston, Jr. Judge.

Action on a policy of fire insurance by Agnes Kinney and Josephine Kinney against the National Fire Insurance Company of Hartford, Conn. From a judgment for plaintiffs, defendant appeals.

Affirmed.

Kirk &amp Rather, of Tuscumbia, and Smith, Hammond, Smith & Bloodworth of Atlanta, Ga., for appellant.

A. H. Carmichael, of Tuscumbia, and Coleman, Spain, Stewart & Davies, of Birmingham, for appellees.

KNIGHT J.

Suit by appellees on a policy of insurance issued by appellant to W. D. Richardson, a building contractor, who had prior thereto entered into a contract with Misses Agnes and Josephine Kinney to construct for them a residence on their lot in Sheffield, Ala.

Before the house was completed it was destroyed by fire, which occurred on the night of November 29th, or during the early morning hours of November 30, 1926. The policy insured Richardson for the term of thirty days from October 30 to November 30, 1926, at noon, against loss or damage by fire to the amount of $2,000. The policy is what is known and called a "builder's risk" policy, on a one-story frame building then in course of construction, and it recited that "when completed to be occupied for dwelling purposes only-provided the consent of the company is endorsed thereon."

The contract which Richardson had with the Misses Kinney, outlining the plans and specifications as to work to be done and material to be used in the construction, is in the following words: "I, D. W. Richardson, agree to furnish all material to build described home according to attached plans. This work complete in all respects will cost the sum of ($2,835.00) Two Thousand Eight Hundred Thirty-five dollars. Respectfully submitted, by D. W. Richardson. Accepted, Agnes Kinney, Josie Kinney, Date October 12, 1926."

During the progress of the work, the Misses Kinney paid or advanced the contractor all of the contract price, except $64.

The appellant insists that the amounts received from the appellees during the course of the construction were payments while the appellees insist they were advances made by them to the contractor to enable him to complete the job, and that they owed the contractor nothing until the house should be completed and ready for delivery, under the terms of their contract. To quote the appellant: "The proper interpretation of the contract is that it was merely an agreement by which Richardson was to get together the material necessary to build and that he himself using the material, would construct the house. The payments made by Misses Kinney from time to time went to reimburse Richardson for labor he had performed, and to furnish funds which, through him, would pay for the material. The real situation between the owner and the contractor was that the contractor was simply acting as agent for the owner in constructing a building which the owner from time to time would pay for, including the material as well as the labor." We do not think the contract, as for any language employed therein, will justify the construction appellant seeks to place upon it. We think the contract will bear no other construction than that the parties to it contemplated a "lock and key" job, and that the Misses Kinney would owe the contractor nothing unless and until the house was completed according to the plans and specifications.

The complaint is in Code form for suit on a policy of fire insurance, with added averment showing a transfer and assignment of the policy to the plaintiffs. The point is made by the appellant that the complaint does not sufficiently show that the plaintiffs are the real or beneficial owners of the policy. This complaint avers: "That after the damage to said building as aforesaid, the said D. W. Richardson transferred and assigned and conveyed unto plaintiffs the said insurance policy, together with all his right and interest thereunder, and the right to maintain suit thereon, for the recovery of the amount due on said policy, and plaintiffs allege that they bring this suit as the owners of said policy and the rights thereunder by virtue of said assignment."

We know of no rule of pleading which requires that the transferee or assignee, in such a case, should be more specific in averring the transfer. The complaint meets all requirements of good pleading, under our statute, and is not subject to the demurrer assigned thereto. Code, § 9531, form 13; Union Ins. Soc. of Canton, Ltd. v. Sudduth et al., 212 Ala. 649, 103 So. 845; Am. Equitable Assurance Co. v. Powderly Coal & Lbr. Co., 221 Ala. 282, 128 So. 225; Commercial Fire Ins. Co. v. Capital City Ins. Co., 81 Ala. 320, 8 So. 222, 60 Am. Rep. 162. It follows, therefore, that the trial court committed no reversible error in overruling defendant's demurrer to the complaint.

With its demurrer overruled, the defendant filed among other pleas (which were in bar) a plea lettered A, and which, in our opinion, was and is a plea in abatement. Plea A set up a matter in abatement, but not in bar of the action. The plea was filed, the record discloses, on October 6, 1930. Immediately following this plea in the record, there appear twelve special pleas in bar. If these pleas were in fact filed after plea A, the filing of the pleas in bar thereafter would constitute a waiver on the part of defendant of the matters set up in plea A. If, however, the pleas in bar were first filed, defendant could not thereafter file plea A, which was, as above pointed out, a plea in abatement. Westchester Fire Ins. Co. of N.Y. v. Green, 223 Ala. 121, 134 So. 881; Home Ins. Co. v. Murphy, 223 Ala. 566, 137 So. 393; Liverpool & London & Globe Ins. Co., Ltd. v. McCree, 210 Ala. 559, 98 So. 880.

We hold that plea A, testing it by "its substantive allegations and its prayer," is a plea in abatement, and that plaintiffs under the circumstances might have moved to strike it, or have treated it as a nullity. Westchester Fire Ins. Co. of N.Y. v. Green, supra; Hart v. Turk, 15 Ala. 675; Brown v. Powell, 45 Ala. 149; Strouse v. Leipf, 101 Ala. 433, 14 So. 667, 23 L. R. A. 622, 46 Am. St. Rep. 122; Ex parte Dunlap, 209 Ala. 453, 96 So. 441; 1 Corpus Juris 268. However, plaintiffs did not pursue either of these courses, but filed replications thereto. The plaintiffs also filed a number of replications to each of defendant's pleas, separately and severally, and to plea A plaintiffs filed replications letters A, B, C, D, and E. To each of the replications the defendant demurred, assigning numerous grounds of demurrer.

After the contractor, Richardson, had made his contract with the appellees to construct the house, and while he was engaged in its construction, he had an insurable interest in the building. To protect this interest he sought and secured the policy of insurance sued on from the defendant. After the Misses Kinney had paid or made advances to the contractor, they also had a separate and distinct insurable interest in the building. The contract of insurance of the defendant was wholly with and for the protection of Richardson, the contractor, and it was paid for this indemnity. The Birmingham Fire Insurance Company was applied to by the appellees for a policy of insurance on the building, payable to them, and, while the policy was dated November 24, 1926, the plaintiffs' contention was that, by their agreement with the Birmingham Fire Insurance Company, their policy was not to become effective until the expiration of the builder's risk policy issued to Richardson.

The facts developed by the pleadings in the case, as well as by the testimony offered upon the trial, are strikingly similar to the facts in the case of Commercial Fire Ins. Co. v Capital City Ins. Co., 81 Ala. 320, 8 So. 222, 224, 60 Am. Rep. 162. In that case, Holt, a builder and contractor, had entered into an agreement with a Mrs. Barrett for the building of a house for the latter. The contractor was obligated by his contract to furnish the materials and build the house for a certain sum of money, with payments to be made in installments as the work progressed. Holt secured from the Commercial Fire Insurance Company a builder's risk policy to protect him against fire. After Mrs. Barrett had made payments to Holt on the building, she took out a policy with the Capital City Insurance Company, insuring the house to her against fire in the amount of $2,000. While both policies were in force, a fire destroyed the house while it was still in the possession of the contractor, and before its completion. Holt transferred his policy to Mrs. Barrett, after the fire, and Mrs. Barrett thereupon transferred it to the Capital City Insurance Company. Thereafter the ...